Kasthika 4 3c) CONTENTS Introduction Constituent Elements of Crime Mens rea in Indian Penal Code Mens rea in Statutory Offences Vicarious Liability in Crimes Territorial and Extra Territorial Application of | PC Joint Liability . Different forms of Punishments Theories of Punishment General Exceptions Mistake of Fact Judicial Acts Accident Necessity Infancy Insanity Drunkenness Consent Compulsion Trifles Private Defence Abetment Criminal Conspiracy Waging War Sedition Unlawful Assembly Rioting Joint Liability of Members of Unlawful Assembly Affray Giving False Evidence and Fabricating False Evidence Obscenity Culpable Homicide and Murder 14 16 S6eys8 41 42 SeRassE 61 70 75 BRER say VA Scanned with CamScanner 404104 33. Doctrine of Tranalerred Malice a4, Death by Rash and Nogligont Act 108, 35. Dory Death 1 36, Aitompt to Commit Murdor and Culpable Homicide 107, 37. Attempt to Commt Suicide ior 38. Abetment of Suicide bi 39, Hurt and Grevious Hurl a 40. — Wrongtul Restraint and Wrongful Confinement 113 41, Criminal Force and Assault ms: 42. Kidnapping and Abduction | sd 43 Rape 124 44. Attempt to Commit Rape and Outraging Modesty san 45. Thott 138. 46, Extortion 129 47. Robbery 144 48. Dacoity 1 49, Thug 146 50. Criminal Misappropriation of Property 146 51. Criminal Breach of Trust 149 52. Cheating 150° 53. Mischiof 151 54. Criminal Trespass 153 $5. House -trespass 153 56. Lurking House-trespass 154 57 __ Lurking House -trespass by Night 154 58. House Breakiang 455 59. Forgery +68 60. Offences Relating to Marriage 159 61. Defamation 1a 62. Criminal Intimidation 167 63, Attempt to Commit Offences im 64. —_ Inchoate Offences Solved Problems ay 173-182 Scanned with CamScannerscanned with Ca »Notes On Law of Crimes (The Indian Penal Code,1860) Prepared by Anil K. Nair Advocate High Court of Kerala Ph; 2327390;2378489(0471) 2347135(0484) 9447500443 (Mob) Topic - 1 Introduction Maintenance of “Peace and Order” / “Law and Order’ in the society is one of the most important and legitimate functions of every State. It is one of the main sovereign functions of the State. This function includes the protection of life, liberty and property of persons. Maintenance of peace and order is absolutely essential. for human beings to live peacefully and without fear of injury to their lives and property. In order to maintain ‘law and order’ certain acts and omissions of human beings are prohibited by law. If a person violates such prohibited act or omission, he commits a criminal wrong and will be punished according to law. The instrument by which the State discharges its primary function of maintaining law and order is the penal law (criminal law) of the land. The measure adopted by the State to maintain law and order is the threat of punishment. The main object of criminal law is the protection of life, liberty and property of people living in the society, Acrime is an act or omission which the law punishes. A crime is considered to be a public wrong, ie., a wrong against public at large orwrong against the State. When a person commits a crime, the State prosecutes and punishes him. Definition of Crime Several authorities have defined the term “crime”. The following definitions are noteworthy. Sir Willam Blackstone “A crime is an act committed or omitted in violation of public law forbidding or commanding it". Sir James Fitz James Stephen “A crime is an act or omission in respect of which legal punishment “ may be inflicted on the person who is in default either by acting or omitting to act”. Kenny “Crimes are wrongs whose sanction is punitive and i remissible by any private person, butis remissible by the Crown (State) alone, if remissible at all”. n no way According to him, the following are the three characteristics of a crime: (1) That-it is a harm, brought about by human conduct, which the sovereign power in the State desires to prevent; . (2) That among the measures of prevention selected is the threat of punishment;- (3) That legal proceedings of a special kind are employed to decide whether the person accused did, in fact cause the harm, and is according to law to be held legally punishable for doing so. sor Acrime is any act which is punished by the State. Acrime is an offence (ie., an act or omission) punishable at law.icted in a crime. There are different A punishment in any form is infill ing. Ifa law awards pun- kinds of punishment ranging from death to warni ishment for a wrong itis known as criminal or penal law. In India, several enactments contain penal provisions. The Indian Penal Code, 1860 is the major criminal law. The Arms Act, 1959, the Drugs and Cosmetics Act,1940, the Explosives Act, 1884, the Explosive Substances Act, 1908, the Immoral Traffic (Prevention) Act, 1956, the Motor Vehicles Act, 1988, the Negotiable Instruments Act, 4881, the Nar- cotic Drugs And Psychotropic Substances Act, 1985, the Prevention of Damage to Public Property Act, 1984, the Food Safety and Standards Act, 2006 etc., are examples of other penal laws. The Indian Penal Code, 1860 cannot be held to contain the entire criminal law of India. Thus the Indian Penal Code is not an exhaustive criminal law. Codification of the Indian Penal Code,1860 In India, the criminal jurisprudence came into existence from the time of Manu. Manu has recognised assault, theft, robbery, false evi- dence, slander, criminal breach of trust, cheating, adultery and rape as offences. The King protected his subjects and the subjects in return owed him allegiance and paid him revenue(tax). The King administered justice by himself, if unable due to certain reasons, the matter was en- | trusted to a judge. If a criminal was fined, the fine went to the King’s treasury and was not given as compensation to the injured party. Different laws came into existence in the reins of different rulers. When the Britishers came into India, Muslim criminal law as applicable in major part of India. They adopted a different set of law which was based on British pattern, but it was not uniform throughout India. Different regulations were passed prescribing practices and procedures to be followed. The First Law Commission was appointed in India in 1635. The commission had four members. Lord T.B.Macaulay was the Chairman aof tho First Law Commission, The Commission was directed to prepare a draft of penal code for India, The Commision prepared the draft and submitted It to the Government in 1837. This draft was enacted into law in 1860 by the Legislative Council. It received the assent of the Gover- nor General on 6th October, 1860. By this enactment, Muslim Criminal Law was completely abolished and a uniform penal law for India was Introduced. The Indian Penal Code,1860 has been amended 76 times. The last amendment has been effected by the Criminal Law ( Amendment) Act, 2013, Fi . 5 Topic - Il What are the Constituent Elements of a Crime? “Actus non facit reum nist mens sit rea”. Comment. What are the Essential Conditions for Criminal Liability 2 The fundamental principle of penal liability is contained in the maxim: "actus non facit reum nisi mens sit rea”. The maxim means that an act does not amount to a crime, unless itis done witha guilty intention. In other words, the act alone does not amount to guilt, it must be accompanied by a guilty mind. The /ntent and the act must both con- cur to constitute the crime. Thus there are two essential conditions of criminal liability. They are: (1) Actus reus; and (2) Mens rea.“a @) Actus reus (Result of human conduct) Actus r BGs any owen, ee ie ®ssential element or ingredient of a crime, ich is sub is. concious move ject to the control of human will, An act tion of will, « Ana ment. quence of the determination of the will is not an act, Thus involuntary actions will not become Criminal act. If a somnambulist sets fire to a house during his sleepwalk, he will not be liable to be punished under the criminal law, Actus reus may be negative or positive. ‘x’ Shoots ‘Y’ and kills him. It is a positive actus reus. The mother of a child does not feed the child and causes the death of the child by putting it in starvation. The actus reus is negative. Thus, actus reus in this illustration is omission to act. In order to be liable for a crime, the act or omission should be one Prohibited by law. The following illustrations will make the point more clear. (i). ‘A’, who is having sufficient means, failed to help a starving man. The man dies due to starvation. ‘A’ is not criminally liable since his omission is not prohibited by law. (ii) ‘A’, who knows swimming , failed to save the life of a drowining child and the child died as a result of the omission. The omis- sion is not prohibited by law and ‘A is not liable for any crime. If ‘At was a coast-guard, the omission to act would have been a crime. 2 iii) ‘A'is a Jail warden. He failed to supply food to the asap i in the jail and several prisoners died due to starvation, ‘A’ is 5 Scanned with CamScannerliable to be punished for murder as he violated a prohibitted omission. (iv) ‘A’ shoots ‘B’ and causes the death of ‘B’. ‘A’ is liable to be Punished for murder since he violated a prohibited act. (ll) Mens rea (Guilty Mind) A prohibited act will become a crime when it is accompaniéd bya Certain state of mind. There must be a mind at fault before any crime Can be committed. An act or omission alone is not sufficient to consti- tute a crime. The act or omission should have followed by an evil intent. Thus we may say, Acrime =Aprohibited act or omission + Guilty mind. The combination of an act with the evil or guilty intent makes a crime. An act by itself is not a wrong. An act which has done with guilty mind makes it a crime, if the act is prohibited by law. Mens rea is an evil intention or knowledge of the wrongfulness of the act. Mens rea may be of different kinds: (1) Intention Intention indicates the state of mind of a man who not only fore- sees but also desires the possible consequence of his conduct. xampl ‘X' threw a stone at ‘Y’ with a desire to cause injury to ‘Y'. Asa result of that, injury was caused to ‘Y’. The desire of ‘X' to cause injury to 'y' Is the intention of mens rea and the act of throwing the stone and the consequential injury is the actus reus. (2) Recklessness /Rashness When a person does an act with foresight of injury but without desire to cause harm to any person, the state of mind can be called “recklessness”.Example : 'X’ drives a vehicle at high speed through a busy street without any desire to commit injury to any person. He foresees the pos- sibility of accident but consciously takes the risk that may result from such a driving. The accident may or may not happen. The state of mind of 'X': at the time of driving, is recklessness. Itis a mind at fault (mens rea) for constituting a crime. (3) Negligence Negligence means ‘want of care’, When a person who is bound to take care fails to take care of an ordinary prudent man his mind is at fault and the faulty state of mind is known as “negligence ", Reckless- ness includes negligent conduct. (4) Knowledge Knowledge refers to the personal information of a person who does an act. It is a state of mind of a person, Under law, doing of an act with knowledge may, constitute a crime. Example : 'X! receives stolen property from Y’ with knowledge that it is stolen property. The act of’ X' is an offence punishable under law. (5) Motive Motive is an attitude of the mind. It is the emotion that prompting to doan act, Love, compassion, fear, jealousy, hatred, pervertec lust, de- sire for money etc., are examples of emotion promoting us todo an act and they constitute motive. Motive refers to the ultimate intent of a person. ‘X’ is a starving man. He decides to commit theft of bread to satisfy his hunger and he commits theft of bread from B's shop. The immediate intention of his act is theft of bread and the motive is to satisfy his hunger. Thus, motive is the ulterior object af an act which prompted him to do an act. Purity of motive or good mative will not convert an act which-otherwise |s criminal into one which is nat punishable.Topic -lll Mens rea in the Indian Penal Code,1860 The term mens rea as such is not included In the Indian Penal Code. The well known terms like intentionally, voluntarily, fraudulently, dishonestly, knowlingly, etc., are used in various sections of the L.P.C. to define offences, By using these terms the offences are defined with suflicient mens rea required to treat an act as a crime. Some of the terms used in the I.P.C. to denote the requisite mens rea for a crime are defined below. 1. Votuntarily Section 39 of the |.P.C. defines the term Voluntarily. It is as follows: A person Is said to cause an effect ‘voluntarily’ when he causes it by means whereby he Intended to cause It, or by means which, at the time of employing those means, he knew or had reason to belleve to be likely to:cause it. A person is said to have done an act or caused an effect ‘voluntar- ily’ under the following circumstances: (i) He has caused an effect by any means with intention to cause it. (il) He has caused an effect by any means and at the time of employing those means he knew that it (the effect) is likely to cause. (iii) He has caused an effect by any means and at the time of employing those means he had reason to believe that it (the effect) is likely to cause. The term ‘voluntarily’ covers intention and knowledge. If a person has done an act with intention to cause an effect or with the knowledge of the effect resulting from his act, he is said to have done the act ‘voluntarily’.Example ‘A’ sols {Ire at night to an inhabited house for the purpose of faciti- tating robbery, and thus causes the doath of a person. He has caused death voluntarily, 2. Dishonostly Section 24 of the Indian Penal Code defines the word “dishon- aatly", Whoever does anything with the Intention of causing wrongful gain to one person or wrongful loss to another person, Is said to do that thing, ‘dishonestly’. I€a person has done an act with intention of causing wrongful gain to one person or wrongful loss to another, he is said to have done the act “dishonestly", If the following conditions are satisfied, an act of a person can be treated as ‘dishonest’, 2 (1) He should have done an act. (i) The act was done with intention to cause ‘wrongful gain’ of any property to himself, or the act was done with intention to ‘cause ‘wrongful loss’ of property to another person. (ill), The person who has gained the property should not be le- gally entitied to It, or the person who has lost the property should be legally entitled to it. - Examale ‘A’ finds a ring belonging to Z on a table in the house which Z occupies. Here the ring Is in Z's possession, If A takes the ring out of Z possession without Z's consent, with Intention of causing wrongful gain to A and thereby to cause wrongful loss to Z, A does the act “dishon- estly", Here Als guilty of theft.Section 23 of the I.P.C. defines the expressions “wrongltul gain” and “wrongful loss” “Wrongful gain” is gain by unlawful means ol property to which the person gaining Is not legally entitled. “Wrongful loss” is the loss by unlawtul means of property to which the person losing it is legally entitled, In order to constitute *wrongful gain’, the following conditions are to be satistied: (i) Aperson should gain some property. (ii) He should gain tne property by unlawful means. (iii) He should not be legally entitled to it In order to constitute “wrongful loss”, the following conditions are to be satisfied: (i) There should be loss of some property to one person, (ii) The loss must be caused by untawtul means. (iii) The person suffers loss of property shauld be lagaily entities to it. Example Z is owner of a ring. The ring is in the possession ot Z. X steals the ring. There is wrongful gain to X and wrongtul loss lo 2 Iris be cause X has gained the ring by unlawful means though he is net legally entitled to it and caused loss to Z by unlawful means. Scanned with CamScanner“Gaining Wrongtully” and “Losing Wronatully” (section 23) Section 23 of the Code defines the expressions “ Gaining Wrong- fully” and “Losing Wrongully” A person Is sald to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person Is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person Is wrongfully deprived of property. A person is sald to have “gained wrongfully” under the following twa circumstances: (i) Hehas wrongfully retained any property. (li) He has wronglully acquired any property. A person is said to have “lost wrongfully’ under the following two circumstances: He is wrongfully kept out of any property. He is wrongfully deprived of any property. Eraudulently Section 25 of the I.P.C defines the term “fraudulently” A person is sald to doa thing fraudulently if he does that thing with intent to defraud but not otherwise. If the following conditions are satisfied, a person‘is said to have done an act “fraudulently”. (i) | He should have done an act. (ii) He should have intention to defraud snot é (iil) The intention should be to defraud another and not other wise. u Scanned with CamScannerTopic - IV Mens rea in Statutory Offences or Doctrine of Strict Liabiilty or Exception to the Doctrine of Mens rea In England and Indla the general rule relating to criminal liability is that “an act is not a crime unless it is done with guilty mind”. This gen- eral principle of common law is contained in the maxim: “ actus non facit roum nisi mens sit rea”. There are certain enactments which define offences without men- lioning the necessity of mens rea. In those statutes offences are de- {ined In absolute terms. The Opium Act, 1878 (It has been repealed by the Narcotic Drugs and Psychotropic Substances Act,1985), the For- olgn Exchange Regulation Act, 1947, the Prevention of Food Adultera- tion Act, 1954, the Narcotic Drugs and Psychotropic Substances Act, 1985 atc,, are examples of such enactments. When an offence Is defined in absolute terms ie., without mentioning the necessity of mens rea, the question that would normally arise is: Can a court read in between lines the necessary mens rea 2 In former times, it was thought that the legislature was not competent to over-ride the established rules of common law. According to this view, even if the necessity of mens rea is not expressly mentioned ina particular statute, the judges should read in between lines the necessary mens rea, \n other words the necessity of mens rea should be taken as granted. Thus even if the offence is defined without mentioning the necessity of mens rea, the courts used to acquit the accused in the absence of guilty mind, But the present view is that when the legislature defines an offence in absolute terms the courts cannot read in between lines tha necessary tens rea.$9 teeny RRP ESSE RAMEE ROSH RA rt OCR im State of Maharashtra v. M_H George (AIR 1965 SC 722). the aed WOR Crosecuted for Eraging gold into India in violation of ory Srotibition. Section 8(t} of the Foreign Exchange Regulation Ach VT orotate? a Peron trom bringing gota into India without special Of GENER Hermigsion of the Reserve Bank of India. The Reserva Sank St letia by @ Nonhcaton issued on Avpust 25,1962 granted a general permission to bring gold trom places outside the territory cl India for transit to ancther country. But by a subsequent Notification cated Nowember 8. 1962. it was mace clear that the person bringing gold for Varst should make a deciaraton in the “manifest” of the aircartt a2 The accuses was 2 passenger trom Zurich to Manila in a Swiss plane which lett Zurich on 27-11-1982. The plane landed at the airpert im Bombay on 281m November, 1952. On a search in the plane. 3¢ kilos ‘of Gold bars were found in the possession of the accused, who was still Sitting in the plane. He had not made the declaration in the “manifest” of the aircraft. The accused was prosecuted for bringing geld into India in wicistion of the statutory prohibition. The Presidency Magistrate sentenced him to rigoureus imprisonment tor one year On appeal, the High Court of Bombay acquitted the accused tor the reason thal the accused had no mens rea as he had brought gold onto India tor mere transit to Manila. The State of Maharashtra appealed betore the Supreme Court of Incia. Tne Supreme Court set aide the jet¢gement of acquiltal of the Bombay High Court and restored the comviction of the accused mace by the Presidency Magistrate. The court held that mere bringing of gold into India in violation of law itself is sufficient to attract punishment though there is no guilty mind. in Inder Singh v. State of Punjab (1972 (2) SCC 372) the appel- lant recessed a parcel containing fruits. While he was carrying the par- cel trom the Railway Station, he was arrested by the police. The parcel was found to contain opium ateng with fruits. The | mere possession ot opium was punishable under the Opium Act, 1878. The accused was pun- wshed for possession of opium though he had no knowledge of tha B Scanned with CamScanner | | |existence of opium in the parcel. Thus the classical view that’ no mens rea, no crime’ has Been avoided by several statutes enacted by the legislatures in India and by such laws severe punishments have been prescribed porate aati reus’. Thus the statutory offences constitute an exception to the doc- trine of mens rea. Topic - V Vicarious Liability in Crimes Vicarious liability is a principle by which one person is held liable for another's wrong. In the case of crimes, the person who has actually commited the crime only is normally responsible. There are certain ex- ceptions to the general rule that in case of crime only the person who committed the crime is liable. The following are the exceptions: (i) By s. 154 of the I.P.C., if an unlawful assembly or ariot takes place on the land of a person, the owner or occupier of such land is |iable to be punished with fine not exceeding one thou- sand rupees, where he or his agent or manager fails to give the earliest notice of the unlawful assembly or the riot to the principal officer of the nearest police-station. In R, v. Prayag Singh (1890)12 All 550, a riot took place on the land of one Prayag Singh during the course of which one Pir Khan was killed. Prayag Singh was punished with fine of Rs.1000/-. (ii) By s. 155 of the |. P.C., whenever a riot is committed for the benefit of the owner or occupier of any land who claims any interest in such land, if such person has reason to believe that such riot was likely to be committed, the owner or occu- Pier is liable for fine if he has not taken all lawful means to prevent such riot. (iii) Section 34 déals with joint Nability or vicarious lisbiity on the 5 14 Scanned with CamScanner(iv) (v) (vi) (vil) basis of “common intention”. By virtue of section 34 of the Indian Penal Gode, “when a criminal act is done by several Persons in furtherance of the common intention of all each of Such persons is liable for that act in the same manner as if it were done by him alone”. Section 120A and 1208 deal with joint liability of a member of a conspiracy to commit an offence. Section 149 deals with joint liability or vicarious liability of members of an unlawful assembly when an offence is commit- ted by a member in prosecution of the common object of the unlawful assembly, . Section 396 deals with joint liability or vicarious liability of dacoits when a dacoit commits murder for committing dacoity. Section 460 deals with joint liability of persons concerned in Jurking-house trespass or house breaking by night when death of grievous hurt is caused by one of them.* 5 Scanned with CamScannerTopic - VI Territorial and Extra-territorial Applica- tion of the Indian Penal Code,1860 (a) Territorial Application The Indian Penal Code, 1860 was enacted to provide a genoral Penal Code for India. The Code applies to the whole of India except the State of Jammu and Kashmir (Section 1), Tha State of Jammu and Kashmir has its own Penal Code, known as Ranbir Penal Code. The Territorial Waters of Indla (ie. 12 nautical miles of wea trom the base tine - ona nautical mile = 1.062 km) ara part of India and offances committed within the territorial waters of India will be deemed to have been committed in India and Is made punishable In India. (b) Personal Application The Code applies to all persons who have committed an offence under the Indian Penal Code anywhere in India. Thus anyone, citizens and foreigners, who has committed an offence punishable under the In- dian Penal Code within the territory of India ts amenable to the jurisdic- tion of the Indian Courts and is liable to be punished. In Mobarik All Ahmed v. State of Bombay (AIR 1957 SC 857) the accused was a Pakistan! National who was residing in Pakistan. The accused made false representations to the complainant at Bombay by letters, telegrams and telephone talks and as a result of which the com- plainant parted with money to the tune of over As. 5 lakhs to the agents of the accused at Bombay. As a result of the extradition Proceedings taken agalnst the accused, he was arrested while he was in England and was brought to Bombay where he was tried and convicted for offence under s. 420 of the I.P.C. Section 420 deals with the offence of “cheating and dishonestly Inducing delivery of Property". The Supreme Z 16 ' ! 1 iCourt held that the entire offence under s. 420 was committed by the accused at Bombay, though he was not personally present in India at the time of its commission. Once the presence of the accused in India is properly sécured, the Indian courts will have jurisdiction against the accused, Problem ‘X’, a foreigner, commits murder of ‘Y', a foreigner, within the territorial waters of India while they were on board a foreign ship. Whether 'X’ is liable to be punished under the Indian Penal Code? By virtue of sections 1 and 2 of the Indian Penal Code, ‘x’ is liable to be punished in India for murder. Section 302 of the |.PC. prescribes punishment for murder. By s.1 of the I.P.C. all offences committed within the territory of India are made punishable in India. The Indian territory includes 29 States and 7 Union territories and territorial waters of India. By s.2 of the I.P.C., every person is liable to be punished under the I.P.C. if he or she commits an offence within the territory of India. Every person includes a citizen or a foreigner. Thus if a foreigner commits an offence under the |.P.G, within the territorial waters of India he is liable to be punished under |.P.C. even though the offence was committed on board a foreign ship. Persons who enjoy Immunity The Indian Penal Code is applicable to all persons, both citizens and foreigners, if an offence is committed within India. To this general tule there are certain exceptions. (1) President and Governor The President of India and Governors of States ara exempt from the = Jurisdiction-of-all courts in India under Art. 361 of the Constitution. No riminal proceedings can be initiated or continued and no process for 7 _the arrest or imprisonment shall issue against these high dignitaries. (2) Foreign Sovereign Foreign sovereigns are not amenable to the criminal or civil jurisdiction of Indian Courts. They are completely immuned from the jurisdiction of Indian Courts by virtue of Public International Law. (3) Ambassadors and other Diplomatic Agents No criminal Proceeding can be initiated against them in India for the offences committed by them while they are in the Indian territory. (4) Foreign Army Armies of a foreign state are exempted from the jurisdiction of Indian Courts when they are within the territory of India with her consent, (C) Extra-Territorial Application of the Indian Penal Code The jurisdiction to try an offence committed outside India is known as extra-territorial jurisdiction of the Indian Courts. ~ Sections 3 and 4 of the Code provide for the punishment of offences committed outside India. If an Indian citizen commits an offence punishable under the |.PC. beyond India, he can be tried and convicted for such offence in India. 'f any person commits an offence under the Code on any ship or aircraft registered in India wherever it may be, he can also be tried and convicted in India(ss. 3 and 4 }. Problems (1) ‘X' Is a eltizen of India. He commits a murder in England. Whether he can be tried and convicted for murder in India? Ans: 'X' being an Indian citizen he can be tried and convicted in 18 Qoannad ath Cameeanner’any place in India in which he may be found. By s. 188 of the Code of Criminal Procedure, 1973, previous sanction of the Central Government is to be obtained for initiating proceedings in India, If a foreigner commits an offence under the Code on any ship or aircralt registered in India, he may be tried and convicted in any place in India at which he may be found, By virtue of section 188 of the Code al Criminal Procedure 1973, Previous sanction of the Central Govern- ment is to be obtained. (2) *X', a foreigner commits murder on board a ship registered in India while the ship was lying In territorial waters of England. Can ‘X' bo trlad and convicted In India for murder.? Ans: 'X’ can be tried and convicted in India since he had committed murder on board an Indian ship registered in India. However, pravious permission of Centra! Government is to be obtained. (3) ‘A' an Indian citizen Instigates ‘B’, a Pakistani to murder ‘C’, another Pakistani by writing a letter from Dethi to Karachi where ‘B’ and 'C’ reside. B declines to act according to A's wishes. Can ‘A’ be tried and convicted In India for any offence? Ans: Acan be tried and convicted in India for abetment to murder. (4) Acitizen of America murdered of an Indlan citizen in England. Subsequently he acquires Indian Citizenship. Can he be tried and convicted for murder In India ? If a foreigner commits an offence under the Code in a foreign coun- try, Indian courts have no jurisdiction to try or convict him even though the offence was committed against an Indian Citizen. Such a person cannot be tried and convicted .for any offence under the Indian Penal if he eequires.Indian citizenship Code by a criminal court in India eve: subsequently 7- : In Central Bank of India v. Ram Narain (AIR 1955 SC 36), the 9 Scanned with CamScannerSuprema Court held that if a person who Is not an Indian citizen cam- mits an offence outside India, he cannot be tried for it by an Indian Court merely because he subsequently acquires Indian Nationality. The provisions of s. 4 of |.P.C. and s. 188 of the Code of Criminal Proce- dure are not allracted to such a case. In Repubitc of italy v. Union of India, 2013 (1) KLT 967 (SC) : (2013) 4 SCC 721, two Indian fishermen ware shot dead while they were on board a boat registered in India, They were fired by two Naval Officers deployed by the Italian government for the protection of merchant-ship (M.T. Enrica Loxie ) from pirates. The incident occured at distance of 20.5 nautical miles away from coastline of State of Kerala, @ unit of the Indian Union. The incident occurred nat within the torrito- rial waters (12 nautical miles ) of the coastline, but within the Contiguous Zone (24 nautical mites {rom coastline), over which tho state palice of the State of Kerala has no jurisciction. Under such a circumstance, the Supreme Court held that the stale police has no jurisdiction to Investigate the crime, Howaver, it was hald that as the Ineldent occured within the Contiguaus Zone, the Central Governmont has jurisdiction to prosecute the offenders. The Supreme Court diracted the Central Government to constitute a special court at Dein! to iry the offenders for the offence of murder. Topic -VIl Joint Liability ( Constructive Liability ) Acrime may be committed by an individual or in collaboration with others. In a case where an individual commits a crime, there would be no difficulty in assessing his criminal guilt. He can be punished according to the nature of the offence committed. The difficulty arises when several persons are engaged in the commission of an offence and different roles are played by each of such individuals. In a case where two or more persons are involved, either jointly or in group, and itis not possible to apportion criminal guilt of each of the ‘participants, all tne:narticipantc. would-be liable for the offence committed by any one or all the members of the gi 5 -based upon the doctrine of joint liability. S 20 Scanned with CamScannerThe provisions relating to joint liability( or constructive liability or group liability) are contained in sections 34 to 38, 120A and 120B , 149, 396 and 460 of the Indian Penal Code. Sections 34 to 38 deal with joint liability on the basis of “common intention”. Section 120A and 1208 deal with joint liability of a member of a conspiracy to commit an offence. Section 149 deals with joint liability of members of an unlawful assembly when an offence is commited in prosecution of the ‘common object’ of the unlawful assembly. Section 396 deals with joint liability of dacoits when a daooit commits murder for committing dacoity. Section 460 deals with joint liability of persons concerned in lurking-house trespass or house breaking by night when death or grievous hurt is caused by one of them. is of “Com: intention” By virtue of section 34 of the Indian Penal Code, “when a criminal act ls done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it ware done by him alone”. Section 34 of the Code embodies the principle of joint liability. If two or more persons have intentionally done a criminal act jointly, it will be treated that each of them has done it individually. Once it is found that a criminal act was done by serveral persons “in furtherance of the common intention of all, each of such persons is liable for the criminal act as if it was done by him alone. Xx Example - A police party went to arrest’A’ from his house, There were several persons in A’s house. All of them came out to drive away the policemen in order to evade A's arrest. In the joint attack one of the 2 :Police constables was killed. It could not be found out who was the real offender. In such a case all of them would be liable for the murder of the Police constable as if each of them had done it alone. This is based on the principle of Joint liability or constructive liability. In order to apply s. 34, the following conditions should be satis- fied: (i) Acriminal act should have been done. (ii) The criminal act must have been done by several! persons. (ill) All the offenders should have a common intention. (iv) All of them should have acted in furtherance of that common intention. If all the above conditions are satisfied, each of them would be liable for the criminal act as if it has been done by him alone. Decided Cases (1) Barendra Kumar Ghosh v. Emperor(A.I.R 1925 P.C.1 )(popularly known as Post-master Murder Case) Three persons entered a post-office. The post master was counting maney. They demanded the money. The post-master had not delivered the money as per their demand. One of them fired shots atthe post-master. The post master died as a result of this shots. The accused persons took to their heels ( ran away) without taking money. The assistants of the post office chased them and caught the appellant, Barendra Kumar Ghosh. All of them were tried for murder, The appellant argued that he was only standing outside the post office and had not fired al the deceased. Though he joined the others for robbery, he had no intention to kill the post master. The court held that the post master was killed in furtherance of common intention of all’ the three men and the appellant was guilty of murder whether he fired or not, 22(2) Emperor v. Indar Singh (1933)14 Lah 814 A.8.C and D went armed to commit robbery at K's house. K was absent and O want to search tor him. In the absence of D, the remaining accused had a scutfie with the sons of K and killed X, one of the sons of Kk. All the four accused persons were charged for murder of X. © argued that he was absent from the place of occurance and was unaware of the murder, This argument was rejected by the court and held that all of them are liable for murder of X since the murder was committed In furtherance of common intention of all. tn order to attract 5.34, the prosecution must establish common intention of all. Common intention of the offenders can be Inferred from the circumstances of the case. Common Intention pre-supposes a pre-arranged plan le., a prior meeting of minds. (3) Mahboob Shah v. Emperor (72 1.A. 148 (PC) On August 25,1943 at about sunrise, “A”, the deceased, along with a tew others left their village and proceeded on a boat for cutting and collecting reeds on the bank of the river Indus. When they had travelled about a mile down the stream, they saw “M”, father af “Wali” bathing on the bank of the river. “M” warned them against collecting reeds from his land. But “A”, inspite of this protest, collected reeds fram that land and started for the return journey. While they were returning with the bundle of reeds and sailing upstream in the river, one “G", nephew of “M", asked them to deliver him the reeds that were collected from his uncle's land. But “A” refused to do so. He then caught the rope of the boat and pushed -A* and gave him a blow with a stick which was warded off. “A” then picked up a bamboo pole from the boat and struk *G". “G", then shouted for help. Then “W" and “M* came up with loaded guns. On seeing them, *A* and his friend “H" tried to run away. But “W" fired at “A” who diedalmost instantaneously. “M” fired at “H" causing injuries to him. “W" absconded and was not arrested. “M” and ‘G’ were tried under section 302(murder) read with section 34 of the Indian Penal Code for the murder of "A", M was sentenced by the trial court to seven years’ rigorous imprisonment for attempt to murder H. But on appeal the Lahore High Court sentenced him to death under s. 302 (punishment for murder) tead with s. 34 of the Indian Penal Code for committing murder of A. ‘M’ appealed to the Privy Council against his conviction. The appeal was allowed and conviction for murder was set aside, The Privy Council held that to invoke the aid of section 34, it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention. If this is so, then liability for the crime may be imposed on any one of the persons in the same manner as if the acts were done by him alone, Common intention within the meaning of section 34 implies a pre-arranged pian, and to convict the accused for an offence applying the section, it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. In the present case there was no evidence to show that *M” had acted in concert with “W" in pursuance of a pre-plan. They had the common intention to rescue “G" but there was no evidence that they entered into a pre-planed concert to bring about the murder of “A” in carrying out their intention of rescuing G (4) Kassim Pillai Asanaru Kutty v. State of Travancore-Cochin (1951 KLT 735) Hydrose Kunju had killed the father of “A” and “B" and uncle of “C". A, Band CG, in turn, out of revenge, lay in wait for Hydrose Kunju near an uninhabited hut fully armed and when Hydrose Kunju came along that way attacked him with their dangerous weapons and killed him. (s ac of (6 SE (7 of cr pr de (8 of lie da re da of dt thThe Court held that all the accused were liable for murder under 8.302 read with s.34 of the Indian Penal Code. (5) Shree Kantlah v, State of Bombay (AIR 1955 SC 287) The Supreme Court held that the essence of section 34 is that the accused must be physically present at the actual commission of the offence and must also participate in the commission of it. (6) Rishi Deo Pandey v. State of U.P. ( AIR 1955 SC 331) The Supreme Court held that common intention may develop at the spot of acrime. (7) SheoramSingh v. State (AIR 1972 S.C. 2555) The Supreme Court held that the common intention may develop all of a sudden during the course of the occurance of the crime. If the crime charged against the accused is one of murder, then the prosecution should establish by reliable evidence that all of them had the common intention to kill the deceased. The common intention may develop at the last moment. But this must be proved by cogent evidence. (8) Suresh v. State of U.P (2001) 3 SCC 673 The Supreme Court held that s.34 of IPC recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense priciple that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. A common intention pre-supposes prior concert, which requires a pre-arranged plan of the accused participating in an offence. Such pre-concert or pre-planning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. 25 Scanned with CamScannerCommon intention can be formed previously or in the course of occurance and on the spur of the moment. The Supreme Court further held that to attract s. 34 of IPC two postulates are indispensable: (1) The criminal act should have been done, not by one person, but by more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been Ir furtherance of the common intention of all such persons. (9) HarjitSingh v. State of Punjab (2002)6 SCC 739 The Supreme Court held that the’common intention can develop or the spur of the moment ( without previous planning ; on a cudden impulse). (10) Lallan Ral v. State of Bihar (2003) 1 SCC 268 The Supreme Court held that the essence of s.34 is simultaneou consensus of the mind of persons participating In the criminal action t bring about a particular result. Such consensus can be developed at th: spot. If there is no common intention to commit a particular crime section 34 is not applicable. If two or more persons enter a house wil the intention of stealing a jewel, but one of them unknown to othe: having a small pocket rifle concealed under his coat, causes the dea of an inmate, his associates will not be liable for murder. (11) Goudappa and Others v. State of Karnataka (2013 (3) SCC 6 The Supreme Court held that no man can be held responsible { an independant act and wrong committed by another. However, s. makes an exception to this principle. It lays down a principle of jo liabillty In doing of a criminal act. Section 34 lays down a principle joint criminal liability which is only a rule of evidence but does | create a substantive offence. If a criminal act is the result of a comm 26